Opinion
19-P-339
07-22-2020
COMMONWEALTH v. ROBERT J. SASSO.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial, the defendant was convicted of violating an abuse prevention order in violation of G. L. c. 209A, § 7. On appeal, the defendant contends that the trial judge erred (1) in denying his motion for a required finding of not guilty because the evidence was insufficient to establish that he caused the victim's utilities to be shut off and (2) by failing to instruct the jury that a conviction for violating the abuse prevention order required proof of the defendant's financial ability to comply with the order. We affirm.
Discussion. 1. Sufficiency of the evidence. In reviewing a denial of a motion for a required finding of not guilty, we assess the evidence in the light most favorable to the Commonwealth to determine whether "[a]ny rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979). "To establish a violation of G. L. c. 209A, § 7, the Commonwealth must prove that (1) a valid G. L. c. 209A order was issued by a judge, (2) the order was in effect on the date of the alleged violation, (3) the defendant had knowledge of the order, and (4) the defendant violated the order." Commonwealth v. Telcinord, 94 Mass. App. Ct. 232, 235 (2018). On appeal, the defendant claims only that the evidence was insufficient to establish the final element.
The defendant was charged with violating a provision of the abuse prevention order that required the defendant to vacate the home he shared with the victim and their two children and "not to shut off or cause to be shut off any utilities" at the house. At trial, the Commonwealth established that the utility bills had been in the name of the defendant alone and that he had taken sole responsibility for paying the bills. After the defendant moved out of the house, the utility bills at the victim's house mounted and utility services were ultimately shut off due to nonpayment. Upon subsequent court order, the defendant paid the outstanding balance within two weeks and utility service was later restored to the house.
The defendant contends that the evidence was insufficient to establish that he "shut off or caused to be shut off" the utilities at the house. He argues that, while the evidence may have established his nonpayment, it did not show that the nonpayment was intentional. See Commonwealth v. Collier, 427 Mass. 385, 389 (1998) (there must be proof that defendant intended act that resulted in violation). In addition to nonpayment, the Commonwealth presented evidence that the defendant had updated his address with the utility company to his mother's address where he resided after he moved out, and that the telephone number on record with the utility company was the defendant's work number, which was also the defendant's mobile telephone number.
In his opening statement, defense counsel indicated that the issue in the case was whether the defendant even knew that the utility company was threatening to shut off services because the victim received the mail and she "chose what mail to forward to him and what mail not to forward to him." The victim denied opening or withholding the defendant's mail and testified that her sons delivered the defendant's mail to him.
Utility company records reflected numerous communications with the defendant ("calls" as well as "correspondence") from the time of the issuance of the restraining order to the shut off of utilities, many of the entries explicitly noting "collections," "disconnect," and "cut-out for nonpay." Thus, the evidence allowed the jury to infer that the defendant was aware of the prospect that the utilities to the house would be shut off if he failed to bring the account current and that he nevertheless failed to pay the bills. From this, the jury could infer that the defendant's nonpayment of the utility bills was intentional, such that he "cause[d] to be shut off [the] utilities." The motion for a required finding of not guilty was properly denied.
The defendant argues that the records reflect payments made in the months leading up to the shut off, thereby undermining an inference that he intentionally failed to pay the bills in order to cause a shut off. However, the record he relies on in support of this argument relates to the utilities for the apartment that was rented to someone else. That payments were made on the other account, which was also in the name of the defendant, but not on the account related to the victim's unit, further undercuts any argument that the defendant may not have had an ability to pay the bills.
In determining the defendant's intent, the jury could also consider the victim's testimony that the defendant had, in the past, cut off utilities when he was angry with the victim or the children.
There was also evidence at trial that the defendant may have explicitly requested the utility company to cancel service to the home. Whether or not the defendant requested a shut off, the records indicate that the reason that services were terminated was nonpayment. We need not determine whether the evidence was sufficient to prove that the defendant directed the utility company to shut off services, since there was sufficient evidence to prove that the defendant intentionally failed to pay the utility bills. Contrary to the defendant's argument, insufficiency of the evidence as to one theory, in the circumstances of this case, does not require reversal. See Commonwealth v. Arias, 78 Mass. App. Ct. 429, 433 (2010) ("alternative methods of establishing a required element are not distinct 'theories' of how the crime may be committed, but are merely similar, equivalent types of conduct any one [or more] of which will suffice to prove a single element").
2. Jury instructions. The defendant contends that the judge erred in failing to instruct the jury that they could not convict the defendant unless the Commonwealth proved that he had the ability to pay the utility bill before the shut-off. We note that the defendant failed to request such an instruction during the charge conference. See Mass. R. Crim. P. 24 (b), 378 Mass. 895 (1978) (request for jury instructions to be filed at close of evidence or earlier).
Following the jury charge, the defendant objected to the Commonwealth's reference in the closing argument to the defendant's "neglect" in paying the utility bill. The judge pointedly asked, "[W]hat are you asking me to do?" The defendant responded, "To say that neglect isn't enough. He'd have to have intentionally not paid the bill." The judge agreed to repeat the instruction on intentional violation. At a later point, the defendant commented to the judge that the Commonwealth "would have to prove that [he's] in a financial position to actually pay the bill." The judge stated that he was "not going to delve into that," but did reinstruct the jury that the defendant's violation of the order had to be intentional and not merely negligent. There was no error.
Due to "indiscernible" passages in the transcript surrounding this statement, it is unclear whether the defendant was making a request for a specific instruction on ability to pay. See Mass. R. A. P. 18 (a) (1) (A), as appearing in 481 Mass. 1637 (2019) (appellant has obligation to prepare and file appendix containing "any parts of the record relied upon"); Chokel v. Genzyme Corp., 449 Mass. 272, 279 (2007) ("[w]hen a party fails to include a document in the record appendix, an appellate court is not required to look beyond that appendix to consider the missing document").
"A trial judge is not required to grant a particular instruction so long as the charge, as a whole, adequately covers the issue" (citation and quotation omitted). Commonwealth v. McGee, 467 Mass. 141, 154 (2014). "When reviewing jury instructions, '[w]e evaluate the instruction as a whole, looking for the interpretation a reasonable juror would place on the judge's words'" (citation omitted). Commonwealth v. Young, 461 Mass. 198, 207 (2012). With respect to the intent element of the crime, the judge instructed that, in order to convict, the jury must find that
"the defendant violated the order by shutting off or causing to be shut off any utility in the particular residence. And I can tell you with respect to that, the Commonwealth is not required to prove that the defendant intended to violate the abuse prevention order. It must prove only that he intended the act, which would constitute a violation."After discussion with counsel, the judge added:
"I did say this, but it perhaps bears repeating, which is that with respect to the act that violates the order, the act which violates the order would be shutting off or causing to be shut off any utility at the particular residence. The Commonwealth must prove the defendant intended that act. So negligence -- negligently allowing that to occur would not be a violation of the order. . . . Negligence -- omission of paying a bill would not be an intentional act that constitutes the violation, so I just want to make that clear to you."The instruction adequately conveyed to the jury that violation of the order could not be premised on mere failure to pay or even negligent failure to pay, but rather, the Commonwealth was required to prove the defendant's intentional failure to pay.
To the extent that the defendant even raised inability to pay as an issue at trial, see Commonwealth v. Cabral, 443 Mass. 171, 179 (2005) (defendant has burden in raising defense by sufficient evidence), there was adequate evidence from which the jury could have concluded that the defendant had the ability to pay. He owned a two-family house, and rented one unit to a tenant. He also owned his own business, a construction company, described as "a fairly prominent company in the city" with an established thirty to thirty-five year history. There was no error.
On cross-examination, a police witness testified that he had "no idea" of the defendant's financial condition in June 2016 but understood the defendant to be a successful businessman in the community. When asked whether he knew of any "prominent businessmen who move in with their parents when they're in their 50s," the witness answered, "It depends on the circumstances." See Commonwealth v. Avila, 454 Mass. 744, 768-769 (2009) (no error in failing to give affirmative defense instruction where defendant failed to meet burden of production).
Judgment affirmed.
By the Court (Vuono, Blake & Singh, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: July 22, 2020.